With some frequency, we receive questions in our practice regarding the interplay between the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) and subpoenas or court orders. Many institutions assume that if they have received a subpoena or court order, they are permitted to produce the documents in question without first obtaining authorization from the affected student (or, in the case of a minor, a parent). This assumption is not entirely correct.
As most postsecondary administrators know, FERPA is the primary federal law that protects student education records. The law applies to any institution, public or private, that receives funds under any program administered by the U.S. Department of Education, which includes the vast majority of postsecondary institutions (because, among other things, they participate in the federal financial aid programs).
FERPA generally provides that before an institution may disclose a student's education records, it must obtain written consent from the student. 34 CFR section 99.30. There is indeed an exception to this general rule for schools complying with a lawfully issued subpoena or court order, but importantly, the exception requires that the institution make a "reasonable effort to notify" the student of the order or subpoena in advance of compliance. 34 CFR section 99.31(a)(9)(ii).
Thus, an institution may produce records in response to a lawfully issued subpoena or court order without the student's consent, but only after it has made a reasonable effort to notify the student that it intends to do so. The purpose of this advance notification requirement is to afford the student an opportunity to limit or "quash" the subpoena. Importantly, the institution is not required to obtain any consent or acknowledgement from the student in response. It is required only to provide the requisite notice.
What constitutes a reasonable effort to notify?
Through a series of decision letters, the Family Policy Compliance Office (FPCO), the division of the Department tasked with overseeing FERPA, has produced a fair amount of guidance on this topic that is worth parsing.
As a threshold matter, institutions should confirm that any subpoena received was, in fact, "lawfully issued." This is simply a matter of confirming that the subpoena was issued in accordance with applicable state law. FERPA does not define the phrase "lawfully issued subpoena," but in a guidance letter dated June...